Harshadbhai Devkaranbhai Patel vs State Of Gujarat
2022 Latest Caselaw 8208 Guj

     R/CR.A/765/2022                                JUDGMENT DATED: 20/09/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 765 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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      Whether Reporters of Local Papers may be allowed to see
 1                                                                         NO
      the judgment ?
 2 To be referred to the Reporter or not ?                                 NO

      Whether their Lordships wish to see the fair copy of the
 3                                                                         NO
      judgment ?
   Whether this case involves a substantial question of law as
 4 to the interpretation of the Constitution of India or any               NO
   order made thereunder ?

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            HARSHADBHAI DEVKARANBHAI PATEL
                             Versus
                     STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
MS CM SHAH, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 20/09/2022

                               ORAL JUDGMENT

1. This appeal is filed by the appellant under the provisions of Section

378 of the Criminal Procedure Code, 1973 (CrPC) against the order dated

R/CR.A/765/2022 JUDGMENT DATED: 20/09/2022

12.03.2022 passed by the learned Principal Civil Judge and Judicial

Magistrate First Class, Talod in Criminal Case No. 842 of 2021, whereby,

the same was dismissed for default, for want of non prosecution.

2. Facts in brief are that the appellant - original complainant filed the

aforesaid criminal case under the provisions of the Negotiable Instruments

Act, 1881 (NI Act) against the respondent No. 2 herein - original accused

before the learned Court below, which came to be dismissed invoking the

provisions of Section 256 of the Code as the complainant could not remain

present before the trial Court on the date so fixed.

3. Heard learned advocate Mr. Vaibhav Sheth for the appellant and

learned Additional Public Prosecutor for the respondent No. 1 - State. So

far as the respondent No. 2 - original accused is concerned, though served,

nobody appears. Hence, the Court proceeded with the final hearing of the

matter.

3.1 The learned advocate for the appellant submitted that the impugned

order dismissing the complaint and thereby acquitting the accused is bad,

unjust, improper, under misconception of law and facts, against the evidence

available on record and contrary to the settled legal position of law. It is

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submitted that the impugned order is manifestly erroneous and demonstrably

unsustainable.

3.2 The learned advocate for the appellant submitted that learned trial

Court has grossly erred in coming to the conclusion that the criminal case is

pending since long and despite several opportunities granted to the present

appellant, neither appellant nor advocate for the appellant remained present

for proceeding further in the matter and that, the appellant appeared to have

been not interested in proceeding with the complaint against the respondent

No. 2. The learned advocate further submitted that the impugned order was

passed without any knowledge of the appellant and no notice or summons

had been issued to the appellant and on 12.03.2022, the matter was listed

before the Lok Adalat, sans there being any information/intimation, either to

the complainant or his advocate and without giving any opportunity, the

matter came to be dismissed for default, for want of prosecution.

Accordingly, he requested to quash and set aside the impugned order and to

restore the case and to hear the same on merits by the learned trial Court

concerned.

4. The Court has also heard the learned Additional Public Prosecutor for

the respondent No. 1 - State.

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5. Having heard the arguments advanced and considering the facts and

circumstances of the case on hand and also perusing the impugned order

dated 12.03.2022 passed by the learned trial Judge, it appears that the matter

in question was listed before the Lok Adalat on the appointed date, wherein,

since neither the appellant nor the advocate representing the appellant, could

remain present, the same came to be dismissed for default, for want of non-

prosecution under the provisions of Section 256 of the Code.

5.1 At this juncture, it would be worthwhile to refer to a decision of the

Co-ordinate Bench of this Court in the case of Harisinh Bhagwatsinh

Sarvaiya v. State of Gujarat and Ors., Manu/GJ/1042/2013, wherein, it is

observed as under:

"10. In the above factual background, reference may be made to the provisions of Sec. 256 of the Code, which are reproduced herein below:

Sec. 256. Non-appearance or death of complainant:- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein above contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with

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his attendance and proceed with the case.

(2) The provisions of sub-sec. (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

(Emphasis supplied)

11. Though, it is not disputed that the power to dismiss a complaint for non-appearance of the complainant has been conferred by Sec. 256 of the Code, at the same time, this provision of law also confers discretion upon the learned Magistrate to adjourn the hearing of the case to some other day, if he thinks it proper to do so. The approach to be adopted by the Court in each situation would depend on the facts and circumstances of the case. However, it would be a prudent exercise of power if a balance is maintained, weighing the facts against the interest of justice.

12. In this context, it would be appropriate to refer to the decision in State of Gujarat v. Keshavram Shivram Devmurari, 1977 GLR 524, wherein this Court has held as below:

5. Under Sec. 256 of the Code, the Magistrate has no doubt, power to acquit the accused if the complainant does not appear on the day appointed for the appearance of the accused or any day subsequent thereto. This power has been conferred on the Magistrate obviously for the ends of justice and with a view to see that an accused person is not subjected to any undue harassment. By way of abundant caution, the very Section further provides that it is not obligatory on the part of the Magistrate to dismiss the complaint and he has been clothed with the power to adjourn the hearing of the case to some other day. The proviso annexed to this Section further makes the position crystal clear. It lays down that where the complainant is represented by a pleader or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The situation as was before the learned Magistrate on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this Section. This is really unfortunate and it is hoped that repetition of such instances would not be there in

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future in the Court of this learned Magistrate or in the Court of any other Magistrate. A copy of this judgment is directed to be circulated to all the Magistrates in the State.

(Emphasis supplied)

13. Further, in Ratanlal Gulabchand Gupta v. Sahara Sev Gruh Udyog Bhandar (supra), this Court has held as below:

3......In our this adversary system in the country, there is nothing wrong of dependent of a litigant who have chosen to engage an Advocate in the matter on him. In the case of this nature, on every date is fixed or the proceedings are taken up, the complainant's presence is not necessary, and more so, where he has engaged an Advocate. It is unfortunate that the Advocate was not sufficiently vigilant in conducting the matter. But for this act of the Advocate, why the poor complainant should suffer. On 24-10-1996, the petitioner was present in the Court and 24-12-1996 was the next date fixed therein. On that date the matter was not on the Board. The best course available in these facts to the petitioner was to contact his Advocate, and I do not find any perversity in the approach of the litigant to act in accordance with the advice of the Counsel. I fail to see why the case of the petitioner has not been accepted by both the Courts below. A complainant, in his absence, may face consequences of the dismissal of the complainant as well as discharge of the accused. How absence of the complainant in the criminal case is beneficial to him; The absence of the complainant in the matter results in dismissal of his complaint, he has to take all the precautions and in this case petitioner did and he engaged an Advocate. On 24-12-1996 the next date was not fixed in case could not be known by the petitioner and I do not find any abnormality in the approach of the petitioner to rely upon the advice of his Advocate. The Advocate has told him to inform him the next date fixed in the matter. It is a different matter that the Advocate has not informed the petitioner the next date fixed in the matter. Though Advocate is supposed to take all the care in the matter of his client, but for his action, omission or lapse, ultimately the poor litigant has to pay heavily. It is not the case of the respondents that the complainant petitioner has not engaged an Advocate in this case. He had engaged the Advocate to avoid any adverse

R/CR.A/765/2022 JUDGMENT DATED: 20/09/2022

order in the complaint for his absence and to defend his case. It is unfortunate that the Advocate did not remain present and for this act, he has paid heavily. By keeping himself absent in the proceedings the complainant is not benefited. The trial Court as well as the Revisional Court has not considered this aspect of the matter. They proceeded with totally a technical approach despite the fact that in series of decisions of this Court their approach is not appreciated. Even for the time-being it is accepted that the complainant was not present, how far it is justified on the part of the trial Court to dismiss the complaint where he engaged an Advocate to represent him. It is the case where trial Court has punished the petitioner for the inaction or omission of the Advocate. The learned Court below should not have given any premium to the accused for his benefit on the ground of the absence of the Advocate. In the facts of this case, the orders passed by both the Courts below cannot be allowed to stand. A time comes where the trial Court as well as the Sessions Court have to look into the matter with justice-oriented approach........

... ... ... ...

In such matters, the approach of the Courts should have been pragmatic and not pedantic. If the matters are decided by use of the power to dismiss the matter for default, it does not give a good name to the institution. Where the litigants approach the Court for redressal of grievances, the cases are to be decided on merits with a judicial approach rather than the Courts exercising power to dismiss the matter for default.

(Emphasis supplied)

14. In Mohd. Azeem v. A. Venkatesh, reported in MANU/SC/1012/2002 : 2002 (7) SCC 726, the Supreme Court has held as below:

3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his

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appearance (sic. absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.

4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.

(Emphasis supplied)

5.2 Moreover, in the decision in Manojbhai Jasmatbhai Ramoliya v.

State of Gujarat and Ors., MANU/GJ/0217 /2020, it is observed as

under:

9. This Court has come across the judgment of the Apex Court reported in MANU/SC/0894/1998 : AIR 1998 SC 596 dealing in case of Associated Cement Co. Ltd. Vs. Keshavanand wherein scope and purpose of insertion of Section 256 in the Code is discussed, which reads as under:

"17. What was the purpose of including a provision like S. 247 in the Code (or S. 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum.

18. Reading the Section in its entirety would reveal that two

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constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the steps of axing down the complainant may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice."

6. In the aforesaid backdrop, if the material on record, more particularly,

the Rojkam of the criminal case is perused, it is revealed that, after filing the

complaint on 26.03.2021, the same was firstly listed on 07.05.2021 and

then, adjourned to 21.06.2021 on account of contemporaneous Covid 19.

Thereafter, it was adjourned from time to time for service of

summons/bailable warrant. On 19.01.2022, it was adjourned due to

contemporary Covid 19 pandemic on 24.02.2022 and on that day, it was

adjourned to 12.03.2022, on which date, the impugned order was passed. It

appears that the matter was listed only once after the same was adjourned

due to Covid 19 on 19.01.2022 i.e. 24.02.2022 and thereafter, the same

came to be dismissed by way of impugned order which was passed on

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12.03.2022. Further, for listing the same as such in Lok Adalat in special

sitting, no intimation appears to have been given to the complainant.

6.1 It is a settled principle of law that a party should not remain unheard.

It is also settled principle of law that adjudication should be on merits rather

than on mere technicalities.

7. Thus, in the overall facts and circumstances of the case, in the

considered opinion of this Court, the trial Court has taken a very hyper-

technical view of the matter and dismissed the complaint, more particularly

when nobody was present on behalf of the accused also, which is evident

from the rojkam itself. Accordingly, the present appeal deserves to be

allowed by setting aside the impugned order. However, considering the fact

that no steps appear to have been taken for service to the respondent No. 2 -

accused by the complainant, the Court deems it proper to allow this appeal

with some exemplary cost.

8. For the forgoing reasons, the present appeal succeeds and is

accordingly, allowed. The impugned order dated 12.03.2022 passed by the

learned Principal Civil Judge and Judicial Magistrate First Class, Talod in

Criminal Case No. 842 of 2021, is hereby set aside. The case is directed to

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be restored to its original file and stage, and the trial Court concerned shall

deal with and decide the criminal case in question in accordance with law,

on merits and without being influenced by any orders.

8.1 Nonetheless, a cost of Rs.1,000/- (Rupees One thousand only) is

imposed upon the appellant - original complainant, which shall be deposited

within a period of two weeks before the concerned District/Taluka Legal

Services Authority.

8.2 R&P, if received, be transmitted back to the learned trial Court

concerned forthwith.

[ A. C. Joshi, J. ] hiren